European Cross-Border Injunctions Revisited. Court Of Justice Goes Dutch.

On July 12, 2012 the Court of Justice of the European Union ("CoJ") rendered its judgment in the Solvay/Honeywell-case (C-616/10). This judgment confirms that the present Dutch approach to cross-border injunctions is in line with the European Regulation on Jurisdiction in civil and commercial matters. The CoJ seems to recognize the need for fast and effective intellectual property litigation.

The Solvay/Honeywell-judgment relates to the interpretation of the uniform European rules on jurisdiction in Articles 6 (1), 22 (4) and 31 of Regulation 44/2001 (the "Regulation"). In short:

Article 6 (1) provides that under certain circumstances co-defendants from different jurisdictions can be sued in the same action; Article 22 (4) provides that in respect of the validity of intellectual property rights such as patents, the national court of the country where the patent is registered has exclusive jurisdiction; and Article 31 provides that national courts may order provisional and protective measures, notwithstanding the jurisdiction of another court. With the Solvay/Honeywell-judgment the CoJ revisits its judgments in Roche/Primus and GAT/LuK of 2006. In these judgments the CoJ significantly reduced the scope for so-called "cross border injunctions" issued by a single court. Particularly in the Netherlands it was not uncommon that defendants were ordered to cease intellectual property infringement in other European jurisdictions, at the risk of having to pay substantial penalties to the IP rights owner.

In Solvay/Honeywell the CoJ clarified the legal position where it concerns multiple co-defendants accused of the same infringement in the same jurisdictions. In addition, there are important findings in respect of provisional relief. The CoJ seems to accept the Dutch practice that under certain circumstances cross-border injunctions are not in violation of the Regulation.

Article 6 (1): co-defendants and the risk of irreconcilable judgements

Pursuant to Article 6 (1) of the Regulation a party can be sued together with a party based in another jurisdiction, provided the claims are so closely connected that it is expedient to hear and determine them together. The aim is to avoid the risk of irreconcilable judgments resulting from separate proceedings in basically the same situations.

In the Roche/Primus-case (C-539/03, 13 juli 2006) the CoJ ruled that this co-defendant rule should not be applied broadly in patent litigation merely because a European...